701.01 Assignment.

--Any mortgagee may assign and transfer any mortgage made to her or him, and the person to whom any mortgage may be assigned or transferred may also assign and transfer it, and that person or her or his assigns or subsequent assignees may lawfully have, take and pursue the same means and remedies which the mortgagee may lawfully have, take or pursue for the foreclosure of a mortgage and for the recovery of the money secured thereby. 701.02 Assignment not effectual against creditors unless recorded and indicated in title of document; applicability.-(1) An assignment of a mortgage upon real property or of any interest therein, is not good or effectual in law or equity, against creditors or subsequent purchasers, for a valuable consideration, and without notice, unless the assignment is contained in a document that, in its title, indicates an assignment of mortgage and is recorded according to law. (2) This section also applies to assignments of mortgages resulting from transfers of all or any part or parts of the debt, note or notes secured by mortgage, and none of same is effectual in law or in equity against creditors or subsequent purchasers for a valuable consideration without notice, unless a duly executed assignment be recorded according to law. (3) Any assignment of a mortgage, duly executed and recorded according to law, purporting to assign the principal of the mortgage debt or the unpaid balance of such principal, shall, as against subsequent purchasers and creditors for value and without notice, be held and deemed to assign any and all accrued and unpaid interest secured by such mortgage, unless such interest is specically and afrmatively reserved in such an assignment by the assignor, and a reservation of such interest or any part thereof may not be implied. (4) Notwithstanding subsections (1), (2), and (3) governing the assignment of mortgages, chapters 670-680 of the Uniform Commercial Code of this state govern the attachment and perfection of a security interest in a mortgage upon real property and in a promissory note or other right to payment or performance secured by that mortgage. The assignment of such a mortgage need not be recorded under this section for purposes of attachment or perfection of a security interest in the mortgage under the Uniform Commercial Code. (5) Notwithstanding subsection (4), a creditor or subsequent purchaser of real property or any interest therein, for valuable consideration and without notice, is entitled to rely on a full or partial release, discharge, consent, joinder, subordination, satisfaction, or assignment of a mortgage upon such property made by the mortgagee of record, without regard to the ling of any Uniform Commercial Code nancing statement that purports to perfect a security interest in the mortgage or in a promissory note or other right to payment or performance secured by the mortgage, and the ling of any such nancing

statement does not constitute notice for the purposes of this section. For the purposes of this subsection, the term "mortgagee of record" means the person named as the mortgagee in the recorded mortgage or, if an assignment of the mortgage has been recorded in accordance with this section, the term "mortgagee of record" means the assignee named in the recorded assignment. 701.03 Cancellation.--Whenever the amount of money due on any mortgage shall be fully paid, the mortgagee or assignee shall within 60 days thereafter cancel the same in the manner provided by law. 701.04 Cancellation of mortgages, liens, and judgments.-(1) Within 14 days after receipt of the written request of a mortgagor, the holder of a mortgage shall deliver to the mortgagor at a place designated in the written request an estoppel letter setting forth the unpaid balance of the loan secured by the mortgage, including principal, interest, and any other charges properly due under or secured by the mortgage and interest on a per-day basis for the unpaid balance. Whenever the amount of money due on any mortgage, lien, or judgment shall be fully paid to the person or party entitled to the payment thereof, the mortgagee, creditor, or assignee, or the attorney of record in the case of a judgment, to whom such payment shall have been made, shall execute in writing an instrument acknowledging satisfaction of said mortgage, lien, or judgment and have the same acknowledged, or proven, and duly entered of record in the book provided by law for such purposes in the proper county. Within 60 days of the date of receipt of the full payment of the mortgage, lien, or judgment, the person required to acknowledge satisfaction of the mortgage, lien, or judgment shall send or cause to be sent the recorded satisfaction to the person who has made the full payment. In the case of a civil action arising out of the provisions of this section, the prevailing party shall be entitled to attorney's fees and costs. (2) Whenever a writ of execution has been issued, docketed, and indexed with a sheriff and the judgment upon which it was issued has been fully paid, it shall be the responsibility of the party receiving payment to request, in writing, addressed to the sheriff, return of the writ of execution as fully satised. 701.041 Title insurer; mortgage release certicate.-(1) DEFINITIONS.--For purposes of this section: (a) "Estoppel letter" means a statement of the amount of: 1. The unpaid balance of a loan secured by a mortgage, including principal, interest, and any other charges properly due under or secured by the mortgage. 2. Interest on a per-day basis for the unpaid balance.

(b) "Mortgagee" means: 1. The grantee of a mortgage; or 2. If a mortgage has been assigned of record, the last person to whom the mortgage has been assigned of record. (c) "Mortgage servicer" means the last person to whom a mortgagor or the mortgagor's successor in interest has been instructed by a mortgagee to send payments on a loan secured by a mortgage. A person transmitting an estoppel letter is the mortgage servicer for the mortgage described in the estoppel letter. (d) "Mortgagor" means the grantor of a mortgage. (e) "Record" means to record with the clerk of the circuit court or the comptroller in the county or counties in which the real property securing the mortgage is located. (f) "Title insurer" means a corporation or other business entity authorized and licensed to transact the business of insuring titles to interests in real property in this state under chapter 624. (2) CERTIFICATE OF RELEASE.--An ofcer or duly appointed agent of a title insurer may, on behalf of a mortgagor or a person who acquired from the mortgagor title to all or a part of the property described in a mortgage, execute a certicate of release that complies with the requirements of this section and record the certicate of release in the real property records of each county in which the mortgage is recorded if a satisfaction or release of the mortgage has not been executed and recorded after the date payment in full of the loan secured by the mortgage was made in accordance with a payoff statement furnished by the mortgagee or the mortgage servicer. (3) CONTENTS.--A certicate of release executed under this section must contain: (a) The name of the mortgagor, the name of the original mortgagee, and, if applicable, the mortgage servicer; the date of the mortgage; the date of recording; and the volume and page or document number in the real property records in which the mortgage is recorded, together with similar information for the last recorded assignment of the mortgage. (b) A statement that the mortgage being released is eligible for release under this section.

(c) The name of the title insurer ling the certicate of release, a statement that the person executing the certicate of release is an ofcer or a duly appointed agent of the title insurer, a statement that the title insurer is authorized and licensed to transact the business of insuring titles to interests in real property in this state under chapter 624 or chapter 626, and, if executed by a duly appointed agent, shall further provide the recording information of the appointment of such agent as required by subsection (4). (d) A statement that the certicate of release is made on behalf of the mortgagor or a person who acquired title from the mortgagor to all or a part of the property described in the mortgage. (e) A statement that the mortgagee or mortgage servicer provided an estoppel letter which was used to make payment in full of the unpaid balance of the loan secured by the mortgage. (f) A statement that payment in full of the unpaid balance of the loan secured by the mortgage was made in accordance with the estoppel letter and that a copy of the certicate of release was sent to the mortgagee or mortgage servicer that provided the estoppel letter. (4) EXECUTION.-(a) A certicate of release authorized by subsection (2) must be duly executed, sworn to or afrmed under penalty of perjury before a notary public, and recorded and may be executed by an ofcer of a title insurer or by a duly appointed agent of a title insurer. Such delegation to an agent by a title insurer shall not relieve the title insurer of any liability for damages caused by the agent for the execution or recordation of a certicate of release. (b) The appointment of an agent must be duly executed, acknowledged, and recorded by an ofcer of a title insurer and must state: 1. The title insurer as the principal. 2. The identity of the person, partnership, or corporation authorized to act as agent to execute and record certicates of release provided for in this section on behalf of the title insurer. 3. That the agent has the full authority to execute and record certicates of release provided for in this section on behalf of the title insurer. (c) A separate appointment of agent shall not be necessary for each certicate of release provided that at least one such appointment is recorded in the county in which the mortgaged property is located. The appointment of agent must be rerecorded where necessary to establish authority of the agent, but such

authority shall continue until a revocation of appointment is recorded in the ofce of the county recorder in which the appointment of agent was recorded. (d) After recordation of a title insurer's revocation of appointment in the ofce of the county recorder in which the appointment was recorded, the agent whose appointment is revoked in such county shall have no further authority to execute or record certicates of release as provided in this section on behalf of that title insurer with respect to any mortgages recorded in that county, and no such certicate of release thereafter executed or recorded by that agent on behalf of that title insurer shall be effective to release any mortgage recorded in that county. (5) EFFECT.--For purposes of releasing the mortgage, a certicate of release containing the information and statements provided for in subsection (3) and executed as provided in subsection (4) is entitled to be recorded with the county recorder and operates as a release of the mortgage described in the certicate of release. The county recorder shall rely upon the certicate to release the mortgage. Recording of a certicate of release by a title insurer or its agent shall not relieve the mortgagor, or the mortgagor's successors or assigns, from any personal liability on the loan or other obligations secured by the mortgage. A certicate of release recorded pursuant to this section fullls any other obligation of the mortgagee or mortgage servicer to le a satisfaction or release of the mortgage. (6) LIABILITY OF TITLE INSURER AND TITLE INSURANCE AGENT.-(a) In addition to any other remedy provided by law, a title insurer and title insurance agent recording a certicate of release under this section shall be liable to the holder of the obligation secured by the mortgage for actual damage sustained due to the recording of the certicate of release. Reasonable costs and attorneys' fees shall be awarded to the prevailing party. (b) The title insurer named in a certicate of release led by a duly appointed agent shall be liable pursuant to this subsection without regard to whether the title insurer authorized the specic certicate of release recorded by the agent. (c) The title insurer and title insurance agent shall have no liability under this subsection if the title insurer or title insurance agent shows that payment in full of the unpaid balance of the loan secured by the mortgage was made in accordance with the estoppel letter furnished by the mortgagee or the mortgage servicer. (d) Liability of a title insurer pursuant to this section shall be considered to be a title insurance claim on real property in this state pursuant to s. 627.7865.

(7) RECORDING.--If a mortgage is recorded in more than one county and a certicate of release is recorded in one of such counties, a certied copy of the certicate of release may be recorded in another of such counties with the same effect as the original. In all cases, the certicate of release shall be entered and indexed as satisfactions of mortgage are entered and indexed. (8) APPLICATION.--This section applies only to a mortgage that secures a loan in the principal amount of $500,000 or less as determined from the recorded mortgage and contains no disclosure of record that the mortgage secures an open-end or revolving line of credit agreement. 701.06 Certain cancellations and satisfactions of mortgages validated.--All cancellations or satisfactions of mortgages made prior to the enactment of chapter 4138, Acts of 1893, by the mortgagee or assignee of record of such mortgage entering same on the margin of the record of such mortgage in the presence of the custodian of such record and attested by the said custodian and signed by said mortgagee or assignee of record of such mortgage, shall be valid and effectual for every purpose as if the same had been done subsequent to the enactment of chapter 4138, Acts of 1893. 701 should cover assignment of mortgages just as chapter 517 should cover the notes. That being said though the rest of 701 is silent as to the way a transfer should be conducted 701.041 is illustrative of the legislatures concern in adding an orderly system to the process (arguable for the benet of title agents) however I intend to argue that it should also apply to all assignments. Especially when there is no documentation that the entity that is bringing the action is the proper party. If they are not named in the mortgage then there should be, recorded, a record of the transfer so that the requirement of chapter 701.04 can be met. I will give a more lengthy explanation later when I have an opportunity to draft it. I realize that this is as new idea but sometimes new ground needs to be plowed. The worst thing that can happen is for the court to tell me no. But I think that if I can argue that this interpretation is necessary to allow some minimum notice to the home owner I may nd a sympathetic ear. Just a thought. Gator Bradshaw NEIL: I agree with that. And it does add to what I have developed so far. So you are creating a statutory duty to record everything that goes on with the mortgage note because everything that happens to it, produces an effect on the enforcement or enforceability of the mortgage. You are echoing the issue that numerous scholars and academics have raised, as an aside, as to whether mortgage notes were EVER meant to be negotiable instruments at all. Your proposition also raises the level of credibility of the argument in the Creighton Law Journal that there ought not to be a holder in due course, although their argument is a bit twisted and the conclusions obscure.

Perhaps their meaning is that their ought not to be consideration of the status of the holder in which case your proposition goes from possible or probable to mandatory i.e., if any holder can enforce the note and foreclose the mortgage, then the original borrower once sued should not be able to be sued again by someone else making a claim through the chain of title even if they are a bona de purchaser for value (without notice of fraud, statutory violations or other irregularities at the loan closing) and thus a holder in due course. And whoever gets title from either a foreclosure or deed in lieu of foreclosure or short sale, should be able to get title insurance without exceptions for whatever happened in the securitization process. Your proposition is supported by and lends support in a positive circular way to the notion that the borrower and subsequent title holders of the property or the mortgage (which is an interest in property) is/are entitled to full disclosure and notice, by virtue of state property law, TILA and duciary responsibilities of the lender to the borrower and the same duciary duties assumed by the Trustee(s) involved i.e., (Deed Trustee in non-judicial states and perhaps the Pool Trustee of the mortgage aggregator). What I think you are zeroing in on here, Gator, is that the borrower was entitled and continues to be entitled to know who it is that he is doing business with. Clearly an attempt is being made here through slight of hand to distract us from the duciary duties of the lender and the duties on all participants at closing (title agent, appraiser, mortgage broker, real estate broker, seller etc.) who had knowledge or who come into the knowledge that things were not as they appeared at closing. The idea is to get us to look at the risk of loss rather than the duties of disclosure and fair dealing. As for criminalization of the conduct, there are statutes in Florida and elsewhere that specically provide for civil remedies for victims of criminal acts. Thus damages would obtain. However the greater strength of your proposition, as it appears to me, is that the title agent and the lender were under a statutory duty to report by way of recording, all transactions relating to the mortgage note. That duty would run all the way up the chain of securitization. Thus when AMBAC was paid a premium to insure the revenue or the principal of the note, this should have been disclosed something obviously nobody upstream wanted as it would be a disincentive to the borrower to make the payment. The same would hold true for cross guarantees and credit default swaps or other options, agreements or additional derivative instruments that spread the risk of loss to third parties upon payment and receipt of fees generated out of the single transaction wherein the investor in asset backed securities was the source of the loan and all expenses associated with the loan, which would include those fees paid to offset risk of loss, fees paid to perform the closing, and fees paid for pooling, collateralization and issuance of asset backed securities etc..